D. BouthCarOWila, W. D. »'ebruary 9O,t." . l:.r 1. OIl: DI$..,ILLBR'S Bo*». ., , In an abtlll1\ ona distiller's bond for the performance of certain duties, to l'eOO'Nlf , :'forbi'eaoh"ol some:of its· conditIons, a summons whioh gives notioethat, in caBe of ,. d41fau1t, plaint4f will pray j.udgment for, demanded in the complaint, i's in good form. '
'.' . A snmmlm.laued «mt of' the dlstrlet court, and bearing the seal of, the dist.rict court but the teste of the chief justice, instead of the district judge, as by St. §911, is defl'ctive in thtl latter particular, but is not a VOId pro:cellS and is amendable. Rev. St. § 9,54;
'M;''P. Ansel, for defenda.nt.,
4btal lAthrop, U. S. Atty.
.Motions in "rrest of Judgment.
was on a bond given by Tar,SiMONToN,District Judge. This Peek and Hughe& as sureties. Summons andcomplaint were them judgment was. had by default; the court heapng the, cause,and orderIng JudgU).l'lot. Subsequently, Hughes, com· ing in 1;Iy (lounsel, without objection, moved for a new trial. The 000was refused. Theca,se nowcotnes up on motion in arrest of judg· ,by each surety severally. The grounds of the motion are the same in each case, that the original summons issuing out of the district court bore the teste of the chief justice, and not of the district judge, and that thes1,1mmons gives notice that, in case of default, plaintiff will pra,yjudgmept for the relief demanded in the complaint; and the complaint demanqsjudgment for a sum of money certain. The last be disposed of. Under the rule of court in force at of tPis sumOlOns, when the complaint is on a liquidated demand, the summons should state that, in case of default, judgment would be asked for the surri liquidated. In all other cases the notice in be that,in caSe of default, judgment would be asked for the relief demanded in the complaint. In this case the action was on a distiller's bondfol the performance of certain duties. It was not on the penalty,but for the nonperformance of some of the conditions, of the bond. The demand was Dot liquidated, and the form of notice in the summons was correCt. The complaint set out the parts of the condition which were broken, and the money penalty for each, and properly asked judgment for the aggregate. This ground for arrest of judgment js. overruled. The mq,i'e se.rious ground is the one first stated. The act of 1792 (Rev. St.§ 911) requires all proceSlJ issuing from the district, court to bear the,teste of the diBtrict judge, or, when that office is vacant, of the clerk thereof. Our rule requires eveDYsummons, execution, or other process to conform to this section. This renders unnecessary any discussion olthe question whether in this district the summons is process. It is not process in the state courts. The summons in this case bears
WEBER'll. SPOKANE NAT. BANX.
the teste of the chief justice. It is defective·. Is thisfatal?'Section
954, St.,·proVides that "no summons, writ, etc., in civil cases,in any court of the: United Sw:tes, shall be abated, arrested, quashed, or reversed for or want of forln." Judge CHOATE, in Brown v. Pond, 5 Fed. Rep., 'at page 40, says that this power of amendment can only be exercised in cases where' the court has acquired jurisdiction over the defendant,or he has submitted himself to the jurisdiction; or, as Judge BLATCHFORD puts'it in Dwighiv. Merritt,4 Fed. Rep. 614, the 'power is powertqamend a defect in process. But there must first be 11' process to be amended,--'"Something to amand and to amend by. The summons in this case bears the seal of the district: court, and issued froin the court. This gives us something to amend'andto amend by. Peaslee v. Haber8tro, 15 Blatchf. 472. See, also, Chamberlain v. Bitter8ohn, 48 Fed. Rep. 42. This being the case, the irregularity can 'be amended, as the summonswa.s, sufficient to bring the defendant into court; deed,there can be no question as to Hughes; for when he came in by attorney, imdmoved for a new trial, he 'submitted himself to the jurisdiction. The motions in arrest of judgment are refused.
WEBER et al.
SPOKANE NAT. BANK et al.
(Ctrcuit Court.D. WasMngwn, E. D. May 27, 1892.)
NATJONAL BANKs-LIMITA.TION OF INDEBTEDNIlSs-CONSTRUCTION OF STATUTB.
Rev. St..5 5202, providing that national banks shall not contract liabilities In exc8ssof paid-up capital stock, excel?t upon \lotes of circulation, accounts for deposits, etc., does not intend that such Items of liability shall be excluded in determining whether the indebtedness of a bank exceeds its paid-up capital stock a' the time it incurs a liability as guarantor.
In an action against a national bank and its receivel' on 8 promissory note, defendants may avail themselves of the defense that the note was executed in violation or Rev. St. § 5202, providing that national banks shall not contract liabilities In eXQeSs of their paid-up capital stock. The note being void as to tile bank, it is not estopped to set up the defense in question. A business D)an, accepting the note of a national bank, Is presumed to know the financiai condition of the bank, and that at the time of the execution of the note it had alreadylncnrredtndebtedness ill excess of the limit prescribed by law.
S.SAME-NoTICE TO CREDITOR-PRESl:MPTIONS.
At Law. Action by C. F. Weber & Co. against the Spokane National Bank and H. L. Chase, receiver, upon three promissory notes. Jury instructed to find for the defendant. Motion for a new trial denied. The. other facts fully appear in. the following statement by HANFORD, District Judge: The notes in suit were drawn in favor of the plaintiffs, as payees, and signed by Charles Hussej,'as maker. The defendant the Spokane National Bank is an anomalous indorser, having signed the notes upon the backs thereof before delivery. Said notes were given in payment of an account for bankfurnitnte and fixtures supplied by the plaintiffs for a